The bad news is that not every Web designer is also great photographers and artists. Even worse, those who are can’t always take or create all of the images they need for a layout.

The good news is that there is are millions of stock photo works created for the use in various Web site layouts as well as to go along side content. These works, usually, are more than adequate to fill that gap quickly and cheaply.

The other bad news though is that including stock photography in a theme that you wish to let others download is a dangerous move and may wind up creating legal trouble for the designer and user alike. Even worse, several stock photo agencies have been especially aggressive in this area, hitting up unintentional infringers for thousands of dollars in damages.

Stock photos and Web templates are a dangerous combination and one that must be used carefully and wisely.

The Problem

Let’s take a look at a scenario to illustrate why these two things do not go hand-in-hand as neatly as it would seem.

1. A designer is building a Web site template, either to sell on their site or to give away for free. He needs an image for the header and spends a few dollars on a Web-resolution stock image that looks great.
2. He finishes the theme and publishes it on his site.
3. Several users all download/purchase the theme and use it on their sites, complete with the header image.
4. Users are sent threatening letters from stock photo agency claiming that they are infringing their rights.
5. Users then point the designer, who then receives another letter claiming he is in violation of the license agreement.

The reason that this can (and regularly does) happen is because there are two legal issues with using stock photos in templates for general public consumption. The first is that most stock photo licenses forbid redistributing the image as part of a template, especially reselling it. An image is usually for use at the site it is sold for and does not give the purchaser the right to redistribute it as part of a package, essentially giving everyone who uses the theme an implied license to put it on their site for free or as part of the cost of the theme.

However, the more scary aspect is that the people using the theme, who often assume they have the right to use the theme out of the box, don’t have a license to use the image and become unwitting unlicensed users of the photo.

In short, everyone who downloads the theme, though they think they are being honest and complying with the law, become unwitting infringers. Though this fits the definition of innocent infringement, this hasn’t stopped many from being subjected to takedown notices, threatening letters and, in many cases, multi-thousand dollar settlement demands.

With little doubt, this is easily one of, if not the, most common ways a law-abiding Webmaster can find themselves on the wrong end of a copyright dispute. However, it is an issue that can easily be avoided.

Tips for Designers

If you’re a designer looking to distribute themes and/or templates, consider a few general guidelines.

1. Favor Public Domain/CC Works: Public domain works are ideal as no license or compliance is needed at all. CC licensed works, however, can also be useful since the license is universal. However, you will have to comply with the image’s license and put precautions to ensure that those who use the theme do so as well, especially if the image is licensed only for non-commercial use.
2. Clearly Source Used Images: Any content you use from others should be sourced clearly. A readme.txt file may be a good idea for this information. This is to let users know where images, JavaScripts, etc. came from and whether they can abide by the same license terms.
3. Read Licenses Carefully: Some images are available for use in themes or that right can be purchased for an additional fee. If you can find images that are, you can use them safely.
4. Work with Photographers and Artists Directly: Finally, if you’re making a theme that is for sale and want to be completely certain of the authenticity of the work, you will likely be better off working directly with an artist or photographer (or just creating the images yourself). This lets you draft the contract that you need and offers assurances of the work’s originality, preventing problems for you and others down the road.

However, designers aren’t the only ones who have to worry about these issues, the users of their templates and themes need to take precautions as well.

Tips for Users

Though it is tempting to download a theme and place it on your site without any thought to copyright, especially considering you downloaded it from a legal source, it is important to take a few minutes to make sure everything is ok.

1. Check the Licensing: When downloading a new theme, take a few moments to make sure that the designer followed the license on all of the images used and that you are willing to as well. If you are unsure where an image came from, you may be able to source it using Tineye but, if there is no clear sourcing, you’re most likely best avoiding the image. In short, ssume nothing and do not trust your designer to have done the work for you.
2. Replace Artwork: If you have to replace images, your own work is best, followed by works in the public domain and then CC-licensed images. However, since you are using the image on just your site, and not distributing it in the theme, you certainly can purchase stock photography cheaply and legally as well.
3. Focus on Larger Images: Finally, though a theme may contain many hundreds of images, it is the larger, more artistic ones that are most likely to become problems. Bullets, spacers and other design elements can be copyrighted in many cases and may become the subject of a dispute, most seem to stem from photographs used within the theme and other artistic works that are more than functional elements. The larger the image and the more work that went into it, the more careful you need to be in order to check the licensing.

Sadly, this advice also goes for those who purchase custom themes from designers. Though most designers are very good about ensuring that their themes contain nothing but legal content, I’ve heard many horror stories of others who have paid money to a designer only to find that many of the images were infringing.

The best thing to do is to trust nothing save your own research. The designer should make it as easy as possible to do that research, but you still have to make sure everything in on the right side of the law before hitting “publish”.

Bottom Line

The extreme enforcement by some stock photo agencies, in particular Getty Images, combined with the tendency for many Web designers to use stock photos in their themes has made for a recipe that has caused a lot of heartbreak and headache. Many people who thought they were using a legitimate theme have been caught up in this particularly nasty dragnet.

Designers need to be smart about the images they use in their work and users need to be less trusting of the content they download or purchase.

It is sad and frustrating, but a fact of the current copyright climate when it comes to stock images.

However, it seems to be working against the stock photo industry in many ways. More and more people are avoiding the use of such sites, in favor of CC-licensed works, and iStockPhoto recently decided to offer its customers assurances by providing a free $10,000 guarantee on all images bought.

It is clear that they are feeling the heat, but it is unclear if they see that they are the ones who lit the fire.

Previously, sending a DMCA notice from Gmail involved using a template stored on your computer and either pasting it manually or using a text expansion program such as Signature, Typinator or others.

With the new Canned Responses feature, the DMCA notice, as well as your cease and desist letter, can be stored within Gmail, making it easy to file a notice from any computer that you have access to.

How you do that is surprisingly simple, all you need is access to a GMail account (Not a Google Apps one sadly) and a good stock letter.

Step 1: Turn on the Canned Responses Feature

Log into your Gmail and click on the green icon at the top to access Gmail Labs.

Then scroll down and turn on Canned Responses

Once you’ve clicked enable, scroll down and click “Save” to make it available it in your account.

Step 2: Paste Your Text into a New Email

Open up a new email and copy your stock letter to the clipboard. Then, paste the letter into your new email, being careful to overwrite your signature if you do not want it to appear when you send out a DMCA notice.

Also, be certain to add the subject line you want to use, something akin to “Notice of Copyright Infringement” works best.

Step 3: Save as a New Canned Response

Save the notice as a new canned response, it will automatically insert the subject as the title but you can change that at the next pop up.

Once you’ve done that, your canned response is ready to use.

Step 4: Paste Into New Email

Open up a new email in Gmail and click the canned response link.

If everything went as planned, the canned response should overwrite your entire email, including your signature line, leaving you with a completely clean template that you can add the relevant information into.

Some Caveats

Right now, much to my chagrin, Gmail Labs is not available for Google Apps accounts. It is only for basic Gmail accounts.

Second, be EXTREMELY careful when using this feature as it is very easy to accidentally hit “Save” and not “Open” when trying to drop in a canned response, thus overwriting your existing template. Both “Open” and “Save” use very similar pop up warnings, making it very easy to click past them without reading.

Finally, double check your subject and formatting after dropping in the canned response. Though sometimes it seems to add the correct subject, other times it does not. It is clear that this feature is not working 100% just yet.

Conclusions

All in all, I this new feature has a great deal of usability and, though I’ve focused here on sending a DMCA notice, it works just as well for any stock letter or template.

This is a feature that I’ve been waiting for for a very long time in Gmail and the fact that it is not available for Google Apps has me a bit miffed right now. However, I can use my regular Google account to send any notices that I have to.

Perhaps the greatest beauty of Gmail is its flexibility, allowing me to send mail from my address using several different Gmail accounts.

A short list of changes include:

• Added comment count to all “Read More” links on the home page.
• Re-Added MyBlogLog on all pages save the home page.
• Re-Added my Twitter to all pages.
• Added arrows to items in the top bar that produce a drop down.
• Removed the full category list (was not being widely used).

The result should be a much cleaner and easier to use site. The Twitter and MBL additions are on a trial basis only though, so if you use those services, add me and let me know so I’ll keep them around this time.

Please let me know what you think about these changes and feel free to make any suggestions you have. More tweaks will probably be coming in the next few weeks.

So how do you keep the workflow moving and make the process of preparing and sending the letter as painless as possible? The answer is easy, templating.

Not only is it important for sending a DMCA notice or a cease and desist, but it is also useful for any other form of correspondence you send out semi-regularly.

Fortunately, no matter what you use to check and send email, there is probably a system available, for free or very low cost, that lets you easily template and fill out form letters, all without leaving your favorite mail client.

Web-Based Services

Since most email users currently use some form of Webmail service as their primary email service, the Web browser becomes not just a tool for viewing Web pages, but also the most important email client.

Fortunately, nearly every single browser either has a feature or an add on that that can function as an email template system.

Firefox, for example, has the Signature Extension. Signature allows you to paste any block of text into any form field with a right click of the mouse. It was designed for adding signature lines to emails and forum posts but can work with text of any length, making it perfect for pasting in any form correspondence.

Internet Explorer users have to look a little harder, but they have several systems available to them, each of which integrate with Windows. They include Autotext and Textomatic. Though neither solution is free, both are reasonably priced and offer trial periods.

Opera users have the ability to insert blocks of text built into their browser through the “Notes” feature. All one has to do is set up their templates in the Notes panel and then right click on any Web form to insert their text.

Other browsers have similar tools available, though many of them will integrate with the operating system, not the browser, meaning that they are also available to be used with any other email client that is on the system.

Mozilla Thunderbird

Though Thunderbird users have access to their own version of Signature, it isn’t available for the latest versions of the program. Fortunately, QuickText expands upon the functionality of Signature and Thunderbird’s built-in features.

Likewise, the Stationery add-on is an option, however, its HTML formatting tools might be overkill for someone just wanting to send out plan text form letters.

All in all, Thunderbird users have several good options for sending out form letters from their email client.

Apple Mail

My mail application of choice, Apple Mail, offers one of the best mail templating systems available, MailTemplate. MailTemplate not only allows you to create templates for easy insertion, but offers a wide range of variables that can be automatically filled in by the program.

The only downside to MailTemplate is that a full version of it costs $15. However, if it is a program that you are likely to use regularly, it is well worth the price.

If you are using Leopard, you are even in better luck as the latest version of Apple Mail includes a full mail templating system, that you can use to customize your messages.

Outlook

Outlook already has a decent template system built in. You can even download additional templates from Microsoft’s site.

However, if you require more power, Bells and Whistles for Outlook provides more advanced template management complete with autofilled variables.

Overall, those who use Outlook to handle their email are pretty well covered when it comes to templating.

Other Programs and General Tips

Other email applications, obviously, will have different needs and requirements than those listed above. Many will likely have some form of templating built into the program while others will need to use an add on.

However, to simplify the process, the add ons will likely integrate not with the application directly, but the operating system. Windows users may want to look at the add ons listed with Internet Explorer as most of them can be used with any application and Mac users will likely want to look at Typinator.

If your email program doesn’t offer the feature as a built-in option or have a free add on available, you might want to consider working around the problem by saving a copy of the letter to your drafts folder and then copying it as needed. Though not an elegant solution, it is an excellent workaround for those who want to have a notices on hand but don’t use stock letters often enough to warrant a paid application.

Conclusions

As with most things in life, being prepared is half of the battle when dealing with content theft and plagiarism. One of the ways you can be better prepared is to have your letters at the ready and available to send out whenever necessary. This not only speeds up the process of dealing with such matters, but lets you get back to the things you enjoy even sooner.

The good news is that being ready takes very little time and, depending on the approach you take, is completely free or very inexpensive. Best of all, you can easily expand the techniques you use to quickly prepare emails regarding content theft to other areas of your inbox and save time on all of your mail duties.

In short, this is one of the few areas where improving your content theft strategy can help you in other aspects of your life. Though I don’t use form letters on email regarding this site (there are no “typical” questions asked), elsewhere, the amount of email and replies would have buried me without the use of good templates.

If your time for email is short and you find that you are repeating yourself a great deal, either with DMCA notices or just thank you letters, this is something to look into.

My Technorati and Google Blog Search feeds stream to me a great deal of posts about plagiarism, content theft and copyright infringement issues. However, a large percentage of those sites that come across my radar are discarded almost instantly because of the probability that they are spam blog.

Since I don’t want to comment on or provide traffic to a blog that is likely computer-generated, I click away from these sites as soon as I am reasonably assured they are junk.

However, this isn’t to say that I am perfect. I do, on occasion, mistake a spam blog for a real one but, as with junk email, the far more common mistake is mistaking a human-powered blog for being junk.

So, if you’re a human blogger and want tips to make your blog look less spam like, thus beating the scrapers and sploggers along the way, here are a few tips that I would offer for ensure you don’t wind up being discarded for being something you’re not.

1. Don’t Use Blogspot

Though I feel bad for the legitimate bloggers that use the service, the fact is that the signal to noise ratio at Blogspot remains very low. Over half of the blogs that I see from Blogspot in my RSS reader are spam, thus anything that I see carrying a Blogspot.com domain is immediately called into question.

A good, relatively spam free, alternative is WordPress.com. However, if you don’t want to move your site to a new host, you can also use Blogspot to manage your own domain.

Simply put, Blogspot has been the number one target for spam bloggers for a long, long time. Though many spam bloggers are moving to other services, usually creating their own domains and setting up their own servers, both the spam and the reputation will stay with Blogspot for a long time to come.

2. Don’t Use Default Themes

Most blogging services have a single default theme or, at the very least, a small set of them. However, they also offer you the chance to either change the theme out or customize it and make it your own.

Using a clearly stock theme sends up red flags. Very few bloggers like the default theme out of the box and most want to at least customize it. With thousands of pre-made, easily-installed themes available for you to use free, there is almost no reason to keep your default theme past the initial blog set up.

Giving your site a personal touch not only makes it a little bit more yours, but it also lets readers know, at a glance, that your site is operated by a human, not a machine.

3. Change Other Defaults

Though changing the template or theme of your site is extremely important, there are other defaults that have to be changed.

WordPress, for example, sets up a default blogroll, creates a “Hello World” post, defines a default user, inserts a generic tagline (Just Another WordPress Weblog) and a builds a meta section upon install. These are all things that should be changed as quickly as feasible.

Though many spammers change some of these elements, especially since the blogroll is now a common place for putting spam links, most fail to change all. Humans, however, typically catch these elements and try to change them to something a bit more suited to their site.

In short, the more elements on your site that one would consider “stock”, the more inclined I am to believe that your blog is actually junk.

4. Get a Good Domain

Good domains are hard to get, but not impossible. If you are going to get your own domain, it is worth taking a few moments to be creative and purchase a decent one for your site.

The key elements to remember are pretty simple. First don’t make the domain too long, especially with the intention of stuffing keywords, and avoid unusual extensions, especially .info and .ws as they are both primarily used by spam sites.

You might have to be creative and make sacrifices, but decent .com and .net domains are still available. If you can, it is much better to use them than to both punish your readers with long URLs and demean your own site.

Users and search engines alike favor better URLs that are unique and easy to remember.

5. Avoid Spam Keywords

Though it might not be possible if you’re creating a site about internet poker or online pharmacies, avoiding the unnecessary use of spam keywords is very important to not looking like a spam blog.

It is important to remember when naming your site that certain keywords create a knee-jerk reaction in both readers and search engines alike. To find out what those keywords are, just open up your spam folder and look at the junk that has been sent to you via email.

If you use these keywords in your name or link to other sites that have them in theirs, expect readers to mistrust your site and also expect search engines to keep away.

Conclusions

Some will wonder if, by posting this article, whether I might be helping the spam bloggers. The answer to that is probably not.

For the most part, these techniques are pretty obvious. Spam bloggers know that their sites look like spam and don’t particularly care. Whether they are trying to pump search engine rankings or encourage clicks on advertisements, spam bloggers don’t want visitors to stay long on their sites.

However, they do rely upon users not being able to easily distinguish between spam and ham. That confusion is aided, in no small part, by legitimate sites not making simple changes that clearly distinguish them as legitimate.

So while these techniques have been known to spammers for years, they have been able to largely ignore them because legitimate sites have ignored them as well.

Even if this is just an escalation of the spam wars, anything that can make spammers work harder and spend more time on their site is a good thing.

Because, even if it only takes them a few seconds to make the adjustments, that time adds up when you’re creating thousands of junk blogs.

The long and short of it is that work is the enemy of the spam blogger. The more we make them work, the harder it is for them to earn their profits. In the long run, that means fewer spam bloggers.

Besides, it is better for bloggers and visitors alike if legitimate sites are clearly marked as such. Not only does it make for a better user experience, but also for more of them.

It makes sense to take a moment and de-spam your site. The Web will thank you.

Update

Way to prove my point. Look at this screenshot of the first trackback I received on this post. You can literally find every element above, save the BlogSpot step, broken in these two screenshots.

Here is the tail end of the URL to prove my point about the domain.

Overall, most people have been very positive about the new look and several people have made very good suggestions about how to improve the site.

I’ve taken many of those suggestions to heart and I’ve created a second version of the beta.

Click Here to View the Second Version

Once again, I am seeking your input and advice on this new layout. Below the fold are the changes made to this layout and the new known issues.

Changes

• Copyright 2.0 Show is moved to where the news section was. This was done because there is no clear divide between “News” and “Articles” but definitely one with the podcast and the written works.
• Expanded both the Copyright 2.0 Show and the Articles column to include five entries each.
• A “Most Popular” section has been added above the Copyright 2.0 Show section to highlight the articles that are most popular on the site at that time.
• Removed the Archives drop down in the sidebar as it isn’t necessary.
• Added a “Subscribe By Email” link under the subscribe heading.
• Many new graphics to for the stories. Refined some of the old ones.

New Known Issues

All of the old known issues still apply. However, it is worth noting that the “Most Popular” list is not actually a most popular list, it is merely a visual placeholder.

It is currently just another list of the latest articles, something that will change once I move the theme to the live server and install the appropriate plugin.

Conclusions

Once again, I turn the theme over to your thoughts and feedback. I look forward to hearing what you have to say. Please, feel free to leave a comment on this entry, send me an email or message me on Twitter.

I look forward to hearing what you have to say!

So Jeremy, congratulations. You earned it by figuring out a very tough puzzle.

However, the puzzle was designed to make a point about the complexity of submitting and determining the validity of a DMCA notice. I think it achieved that.

That, of course, brings me to the solution. The third notice was the valid one, if you want to know why, keep reading below.

Missing Something

All three notices were missing something, the trick was to figure out which missing item was not actually required by the law.

The first notice was missing a statement, under the penalty of perjury, that the notice was accurate. Several who played the game caught that and were completely right. The notice is completely invalid.

The second notice is a bit more tricky and was the one that tripped everyone up. However, it’s missing feature was actually related to the first one. To figure out what is wrong, we’ll look at the sixth requirement under the DMCA:

(vi)A statement that the information in the notification is accurate, and under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.

The notice has to be filed by either the copyright holder or an authorized agent. Though the second one states that they do not believe the use is authorized by either, it does not state that the notice is submitted by one or the other.

That is a major distinction from EU notice and takedown and is a legal requirement of the DMCA. The second letter, theoretically, could have been submitted by anyone without authorization from the copyright holder. That would be against the DMCA and would haev been grounds for rejecting the notice.

It is a tricky law in that regard, but it is an important element.

Finally, the third DMCA notice was missing the URLs from the original site. However, as Jeremy pointed out, there is no requirement for URLs to be there. All that is required is that the original work be identified, which it was by the title, and that the infringing material be identified as well, which it was via URLs.

You can see examples of this in the DMCA notices filed by companies such as Viacom and Scholastic, which rarely have URLs to original works since their material was never supposed to be online.

The third one, despite being shorter and containing less information, was actually valid.

Thank You

I want to say thank you to everyone who participated and hope that you will take part in the next game, whenever that is. There were a lot of great ideas kicked around and a couple of you emailed me for hints, which is definitely cheating, but was a lot of run.

Let me know what you thought of the game and I’ll try to make the next one a little bit less evil.

Quizzes always bring out my sinister side.

Though the criticism of hosts is a little more fair since they were one of the parties pushing for the notice and takedown provision, the fact remains that the DMCA notice and takedown provision is complicated and, for most people, difficult to use.

Without a good stock letter, most people find it nearly impossible to file a complete DMCA notice and most hosts provide little to no assistance with the process.

To illustrate that problem some as well as explain why hosts make mistakes with the DMCA and why so many submitted notices turn out to be invalid, I’ve decided to create a game. This game will test your knowledge of the DMCA by giving you three notices, only one of which is valid.

You have to pick the right one.

The rules and notices are below the fold so keep reading and post your answers in the comments.

The Rules

The rules are simple, there are three notices below in RTF format. They have different structures and styles but only one of them is complete. To win, all you have to do is post the correct answer in the comments and then explain, briefly, why the other two are invalid.

If you can do that first, then you win no prize at all other than my recognition and, if you wish, your link at the top of this article.

However, there are a few rules before we begin:

1. No Cheating: Keep your eyes on your own paper. Ideally, you should be able to do this from memory. However, if you need help, all you need should be on Plagiarism Today. No searching other sites for the answer. We are all on the honor system here.
2. No Lawyers: This is for laypeople. Sorry. That kind of advance knowledge is just cheating for this quiz.
3. No Spam Sites: I reserve the right to not link to any site that may be spammy or inappropriate. Keep the sites clean, spam-free and appropriate for Plagiarism Today.
4. I Didn’t Cheat Either: Both of the invalid notices have material problems with them. Since they all report the same “infringement” there are no fair use or other legal questions. There are also no issues of semantics. This should be cut and dry and the reasons are based upon the law itself, not what an individual host *might* accept. (Hint: I don’t cheat, but I do use red herrings.)
5. Have Fun: Though not a rule, it is still important. This is a game so have fun with it, just remember it highlights an important point.

If no one guesses the answer correctly in 24 hours, I’ll post it tomorrow as part of my regular update. If this goes well, I might do similar contests on a regular basis.

Please let me know what you think.

The Notices

If you are ready to play, here are the three notices in RTF format:

DMCA Notice #1

DMCA Notice #2

DMCA Notice #3

Open up each file, take a look at them, pick out the one that is correct and explain why the other two are not.

Once again, the first person to do will be given a link at the top of this article and the eternal praise of all who read this.

Have fun and put yourself in the host’s shoes when looking at these notices. This is what they deal with every day.

Conclusions

Web hosts asked for the DMCA and were some of the biggest beneficiaries of the notice and takedown provision. It removed copyright liability from them and gave them a legal system to remove works that were infringing while removing them from the requirement to search for potential copyright violations.

Regardless, the DMCA is a difficult law to use and it is the responsibility of the host to make sure the notices they receive are valid. However, this is designed as a minor illustration to show what they are up against when reviewing such notices and what submitters are up against when trying to create one.

What is needed is a unified, binding DMCA notice that is easy to use and easy to check. This could weed out many of the errors that come with trying to use/enforce the DMCA and, when combined with hosts who are more savvy about copyright law, could prevent many of the DMCA abuses.

In the meantime though, it is problems like these that we are stuck with and left to figure out.

Good luck to everyone.

(Note: If I made a mistake, I apologize. WordPress was being difficult with uploading and it is hard to work on three separate files like that at once. I checked them before and after I uploaded so there shouldn’t be a problem, but this post turned out to be far more difficult than I thought it would be. Please accept my apologies in advance if there are any errors.)

If you’ve been waiting for such a feature, then today is your lucky day.

Though I’ve posted sample letters as part of I’ve now added it as a permanent part of the site in the “Navigation” section to the right.

The current page includes three stock letters, a cease and desist letter, a DMCA notice for hosts and a DMCA notice for search engines. All three notices are available in full text on the page itself or as downloadable RTF files.

As with everyone else on the site, these notices are licensed under a Creative Commons license, however, when sending them to plagiarists, hosts or search engines, no attribution is required. Still, please respect that license when posting them on other sites.

If you have any questions or comments about these letters, feel free to email me your thoughts. I look forward to hearing what you have to say!